| People v Green |
| 2009 NY Slip Op 09896 [68 AD3d 1780] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David K.Green, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Brunetti, A.J.),rendered May 6, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countsof robbery in the first degree (Penal Law § 160.15 [4]), defendant contends that the policelacked probable cause to arrest him and that Supreme Court therefore erred in refusing tosuppress his oral and written statements to the police as well as certain tangible evidence seizedas the result of that allegedly unlawful arrest. We reject that contention. Here, the victimsprovided the police with a description of the two perpetrators and the escape vehicle driven by athird individual. Based on a radio dispatch containing that information, an officer detained avehicle near the scene of the robbery matching the description of the escape vehicle andcontaining three individuals. The driver of the vehicle informed the officer that he and the twoother occupants had just left the bar outside of which the robbery had occurred, and policeofficers observed items matching the description of the stolen property on the ground next to thepassenger side door and in the front seat of the vehicle in question. We thus conclude that thepolice had probable cause to arrest defendant, i.e., they had "knowledge of facts andcircumstances 'sufficient to support a reasonable belief that an offense has been or is beingcommitted' " (People v Maldonado, 86 NY2d 631, 635 [1995]), even before the showupidentification of defendant by one of the victims had taken place (see generally People v Davis, 48AD3d 1120, 1122 [2008], lv denied 10 NY3d 957 [2008]).
We reject defendant's further contention that the verdict with respect to the first count of theindictment is against the weight of the evidence. Viewing the evidence in light of the elements ofthe crime in the first count of the indictment as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed topreserve for our review his contention that he was denied a fair trial by alleged prosecutorialmisconduct on summation (see People vBones, 50 AD3d 1527 [2008], lv denied 10 NY3d 956 [2008]), and we declineto exercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Finally, we conclude that the sentence is not unduly harsh orsevere. Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Gorski, JJ.